What Is Legal Separation in Utah?
When couples in Utah decide to separate, they have the option of legally separating or divorcing. When people come to our law firm asking about legal separation, they often have specific questions — about the therapy requirements for legal separation, how long legal separation lasts and what it really means.
For example, some clients express a long-term goal of getting back together with their spouse, or working on their marriage, but in the interim, they only want to separate. In Utah, it is only in rare circumstances that courts order married couples to be separated and stay married.
Most marriages are never ordered to get back together. If spouses choose to be physically separated, temporary requests for divorce-specific relief may be made. An example would be if one spouse stays in the house and another spouse wants to continue to make the house payments, and wants a financial support order during that period so that the one remaining in the house can pay the mortgage. Often, there are additional orders regarding custody and support (for a few months only).
Legal separation achieved through a court order is a process that must be followed. The petition is filed, there is a hearing and the other spouse is served. Based on Utah’s "921 days to docket" rule, the case must remain pending for 61 days. In the past, at the end of the 61 days, some judges used to simply allow the parties to sign off on their separation agreement and then dissolve the case; that has fallen out of favor. More recently , the timing of this 61-day court "waiting period" has been codified in Utah law. In most courts throughout Utah, judges will not sign a decree of separation until the 90th day after the case is filed.
Although the decree of separation will order the parties are living separate and apart, they are still married. In other words, there is no divorce until a subsequent complaint for divorce is filed. A court-ordered legal separation may be a "waiting period" for either party or both parties to file for divorce. After the parties have waited the designated period of time, one party can file for divorce.
Because legal separation is a waiting period for divorce, many couples find themselves meeting other requirements prior to being able to file for divorce. For example, Utah requires couples to invest time into marriage counseling before a court will grant a divorce. In a legal separation, it appears as though the marriage counseling is leftover from the marriage. In other words, the concerns that lead individuals to seek a legal separation are not addressed; the underlying problems in the marriage are simply put on hold while the parties work on their decision to separate.
Married but living apart is the important distinction of a legal separation. Although the separation helps couples focus on the issues that led them to separation, it is not an end to the marriage.
The Divorce Process in Utah
The divorce process in Utah only begins when one spouse files a petition with the court. Until a petition is filed and served upon the other spouse, a legal separation does not technically exist. The filing spouse must pay a fee in order to file the petition. In turn, the court will issue a summons and have the petition served upon the non-filing spouse. Although the court can serve the petition with a constable, sheriff or licensed private process-server, a qualified individual must serve the petition in order for the court to maintain jurisdiction. "Qualified" means that the individual must be over the age of 18 and not have a substantial interest in the matter. "Substantial interest" generally means that the individual is not one of the parties to the action. Once served, the non-filing spouse has 20 days to file an answer with the court if he or she resides within the state. If the non-filing spouse resides outside the state, he or she has 30 days to file an answer with the court. Failure to file an answer will result in a default judgment against the non-filing spouse, and a divorce will enter accordingly. The filing spouse must participate in a divorce orientation class within 30 days after filing the petition and serve proof of that completion on the court and the other spouse. In addition, if minor children are involved, the court must find that both parents attended court-ordered mediation or a mediation orientation class within 60 days after the petition was filed. Upon completion of the divorce orientation class, a scheduling order will be entered. The scheduling order will dictate when several other tasks must be completed, including disclosures of all financial information and settlement conferences between the parties. Once the parties have completed all of the required statements, disclosures and workshops, they may request a hearing at which time a judge will decide whether or not to grant the divorce. A judge may finalize the divorce at any time after proper notice and upon a finding that the marriage is irretrievably broken. In the event that the parties cannot agree to all the terms of the divorce, they may ask the court for a temporary order that provides relief while they seek to finalize their case. Some reasons that a court may issue a temporary order include: Generally, temporary orders are effective until the case is finalized. In the event that the parties reach a settlement agreement prior to the case’s finalization, the court must approve the agreement before it becomes final and enforceable.
How Legal Separation Differs From Divorce
While both legal separation and divorce can be used to end a marriage, they are not interchangeable. Each has its own purpose and unique consequences — financially, emotionally, and legally. Here are some primary differences:
Legally, a legal separation is not a divorce. Your marriage remains intact until/unless you file for and attain an actual divorce. Emotionally, a legal separation will give you the opportunity to – in a (hopefully) peaceful and mutually agreed-upon way – determine what is best for your family, as well as get the space you need from your spouse to make decisions about the future. While divorce entails dividing up assets, allocating debts, and addressing spousal support, a legal separation does not. In other words, the answers to these latter questions generally remain the same until you file for a divorce. To that end, you have to cover all of your spouse’s debts that you co-signed on even after your separation. If you legally separate from your spouse, you still have to abide by your spouse’s inheritance rights, Social Security benefits, and health insurance under each other’s plans.
Reasons to Pursue a Legal Separation Instead of a Divorce
There are numerous occasions when a legal separation can be beneficial as an alternative to a divorce. A relatively common situation involves parties, like many in Utah, who are estranged but have chosen not to divorce for reasons particular to their situations. Some may have strongly held religious beliefs that preclude divorce or call for certain kinds of separation; others may hope in time to have the kind of relationship that might make reconciliation possible. Sometimes parties are not financially ready for divorce and prefer the stability of a known legal framework that incorporates true legal protections rather than constantly shifting conditions of uncertainty or the technical status of physical separation. At other times, one partner is ready for a divorce while the other is not; the reluctant partner, not wishing to take on the stigma of divorce, may prefer to separate from the legal relationship but continue to reside in a shared household: they have moved out of the marital bedroom; a formal separation offers more protection and status than cohabitation, while avoiding the need for a divorce and the negative stigma or other issues associated with it.
Children and Custody
The implications for children in a divorce and a legal separation are the same. In a divorce, you arrive at a Resolution of all of the issues, including the parents’ obligations to the child, whether related to custody, parent time or child support. On a divorce you receive an Order that is considered permanent unless it is modified. When parents are legally separated, they can agree to more limited terms. The problem is that people hope things will get better after legal separation. The truth is that when someone is readied get divorced, there is no turning back. In some instances, those who originally plan to get divorced don’t do it. For example, some parties get remarried. There is also a risk that one party (or both parties) will enter into another relationship and there can be questions regarding whether the new relationship constitutes adultery. Adultery plays a role in the legal analysis, so the longer someone is single the less claim to adultery. One other problem with a legal separation is that the provisions that are agreed upon are only temporary. If the parties have a change of heart, as is often the case, they have to go through a legal separation process, resulting in additional legal fees. At the end legal separation process, they have to start the divorce process all over from the beginning, incurring even more legal fees. A divorce decrees resolves all of the matters that need to be resolved. If the parties complete a divorce and then get back together, forgiveness goes a long way. It’s not easy, but it is worth it for many parties. Apart from the Division of Assets and Debts, the most critical issue for people going through a divorce is custody. Formally, "custody" refers to the legal standard, which refers to determining who controls the child’s upbringing. The law §§30-3-13 , 30-3-33. Custody can be joint or sole. The presumption in Utah is that parents are awarded joint physical and legal custody of a minor child, unless the court finds good cause to require joint custody is not in the best interest of the child. Good cause for denying joint legal custody can include: The issue of custody is decided based upon the best interests of the child. The parent’s conduct is not a factor in determining the best interests of the child except when the conduct demonstrates that the parent is unfit, incompetent, or entitled to less custody than the other parent. As a general rule, the following list provides parental behavior that will affect the court’s determination of what is in the best interests of the child, including the following: When making a decision about the children, the judge or commissioner engages in a balancing test to determine the best interests of the children. Not all of these factors will apply with each family based on the individual circumstances of that case. Neither parent is presumed to be favored or disfavored, nor is favoring a father or mother parenting time related to the parents sex. There is not a formula to determine custody in Utah. Utah law requires more than 1 factor, subject to the balancing test for best interests of the children. Courts cannot ignore anything. As part of the court process, the evaluator has to produce a detailed report that includes all the relevant factors. The court does not want to have the parties go to court time and time again. Therefore, even if the facts suggest one outcome, the judge will also consider the damage that comes with having to go to court and expose the children to conflict. The litigant prefers to keep the children out of the court system.
Money and Property Division
Financial matters such as alimony and the division of marital property are affected the same way in a legal separation as they are in a divorce. Unless you and your spouse agree otherwise, when requesting spousal alimony or support, the presiding Judge or Commissioner will use the Alimony Guidelines to reach their decision on the amount and duration of alimony. Agreement is common, however, some Judges or Commissioners will still granted a request for different alimony if appropriate.
Marital property will be divided the same way it would be divided in a divorce in Utah. The Court takes into consideration a multitude of factors when determining the equitable division of marital property. In general, marital property is considered to be any property that was acquired during the marriage. Non-marital or separate property is anything you brought into the marriage or received as a gift or inheritance from a third party. Separate property is considered non-marital and is not subject to equitable division by the Court.
Where to Get Legal Advice
A critical first step when determining whether to pursue a legal separation or divorce in Utah is consulting a domestic relations attorney. A seasoned lawyer will thoroughly explain your options and their implications, helping you make an informed decision that’s right for you.
In most cases, hiring a divorce attorney is in your best interest. While it might be tempting to negotiate the terms of your separation or divorce directly with your spouse, you may end up losing out. Though it seems fair to just divvy things up amicably and move on, your spouse may try to cheat you out of what you deserve, especially in a divorce, where you must divide your property.
Negotiating your separation or divorce without legal representation isn’t advisable because it’s hard for you to view the situation objectively. It’s even harder to know who might be unduly influenced or pressured to agree to your spouse’s terms . A good divorce lawyer will help to ensure you don’t make rash decisions you come to regret later. They’ll also know what is reasonable and fair in terms of asset and property division, child support, visitation and custody.
There are many resources available to help you find an experienced divorce lawyer in Utah. The Utah State Bar makes finding a professional in your area easy. The bar offers a simple search option so you can narrow your search to find local representation.
You can also seek personal referrals by asking family and friends who have gone through the process, or by researching the roster of members of the Utah Domestic Relations section of the state bar.
The initial consultation should be free, so take advantage of this offer and talk to several lawyers to get a sense of your overall options. Take your time and don’t feel pressured to hire right away.
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